The Center for Biological Diversity submitted two FOIA requests to the EPA for records concerning the agency's decision to register Enlist Duo, an herbicide used in industrial agriculture. The agency acknowledged receipt of both requests. The agency provided some records in interim responses and withheld records under Exemption 5 (privileges). The agency also denied the Center's request for a fee waiver. The Center appealed the agency's decisions, but after hearing nothing further from the agency, the Center filed suit.Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Public Interest Fee Waiver, Litigation - Attorney's fees

FOIA Project Annotation: Judge Beryl Howell has ruled that the EPA has not yet shown that it conducted an adequate search for records pertaining to its decision finding that Enlist Duo, a herbicide manufactured by Dow AgriSciences, would have no effect on endangered species living in a 16-state area, nor has it provided sufficient support for its exemption claims. In response to two FOIA requests from the Center for Biological Diversity, the agency conducted three searches for electronic and paper records. Its first search focused on the Environmental Fate and Effect Division within the Office of Pesticide Programs and involved seven custodians. The second search included six custodians in the Office of General Counsel, as well as two more custodians in the Office of Pesticide Programs' Registration Division. A year later, a supplemental search was conducted by the four attorneys in OGC and the two OPP Registration Division employees. EPA disclosed at least 138 documents and withheld 150 emails under Exemption 5 (privileges). Howell faulted the EPA's use of the CBD's FOIA requests as the cut-off date for searches. She indicated that "EPA has articulated no compelling justification for using either September 26, 2014, or October 20, 2014, as a cut-off date for searches of records responsive to CBD's requests. Although October 20, 2014 may have been 'convenient' due to a large number of similar FOIA requests, 'convenience' is not a compelling justification. Accordingly, EPA should have used the 'date of the search' as the cut-off date." Further, the email correspondence identified an additional 11 staff members who might have had responsive records. EPA argued those 11 were only copied on emails, but Howell pointed out that "the prudent approach would have been simply to search the files of these remaining possible custodians rather than cavalierly to dismiss them as unlikely to have responsive documents." Howell also found the agency had not explained whether or not it searched for responsive text messages or instant messages. The agency withheld a number of records under Exemption 5. CBD argued that the determination whether to list a chemical as having no effect on endangered species could not be deliberative in nature. Howell noted that "given that the 'no effect' determinations is statutorily required to be based on 'the best scientific and commercial data available,' EPA has generally failed to explain how this determination involves the type of policy judgment protected by Exemption 5." Faulting the EPA for failing to make any segregablity determinations, Howell pointed out that "if EPA intends to withhold any document, in full or in part, and disclaims any segregable information, EPA must provide a particularized explanation of non-segregability for each document." Although she found in favor of CBD as to both the search and the exemption claims, Howell rejected CBD's argument that EPA's processing of their requests showed a pattern or practice of violating FOIA. She noted that "EPA not only disclosed documents, but took steps to communicate with CBD about the pending FOIA requests. CBD does not allege that EPA ever decided to refuse to produce any records. Consequently, the undisputed factual record does not support CBD's pattern and practice claims."
Issues: Adequacy - Search, Exemption 5 - Privileges - Deliberative process privilege - Deliberative

Unopposed MOTION for Extension of Time to Answer or Otherwise Respond to Complaint by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 04/14/2016)

2016-04-14

MINUTE ORDER (paperless) GRANTING the defendant's 8 Unopposed Motion for Extension of Time to Answer or Otherwise Respond to Complaint. The defendant shall, by May 16, 2016, answer or otherwise respond to the 1 Complaint. Signed by Chief Judge Beryl A. Howell on April 14, 2016. (lcbah2) (Entered: 04/14/2016)

2016-04-15

Set/Reset Deadlines: Answer to the Complaint due by 5/16/2016. (tg) (Entered: 04/15/2016)

MINUTE ORDER (paperless) GRANTING the defendant's 11 Consent Motion for Extension of Time for the Parties to File Initial Status Report, and DIRECTING the parties to file, by June 6, 2016, a joint status report, as required by paragraph 3(b)(ii) of the 5 Standing Order. Signed by Chief Judge Beryl A. Howell on May 31, 2016. (lcbah2) (Entered: 05/31/2016)

MINUTE ORDER (paperless) ISSUING the following SCHEDULING ORDER to control the timing of proceedings in this matter, upon consideration of the parties' 12 Status Report and Proposed Schedule: The defendant shall, by October 21, 2016, file any motion for summary judgment, along with supporting materials documenting the defendant's basis for any withholdings. The plaintiff shall, by November 21, 2016, file any opposition to the defendant's motion, as well as any cross-motion for summary judgment. The defendant shall, by December 21, 2016, file any reply in support of its motion for summary judgment, as well as any opposition to any cross-motion for summary judgment. The plaintiff shall, by January 23, 2017, file any reply in support of any cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on June 6, 2016. (lcbah2) (Entered: 06/06/2016)

2016-06-08

Set/Reset Deadlines: Summary Judgment motion due by 10/21/2016; Cross-Motion/Opposition to Motion for Summary Judgment due by 11/21/2016; Opposition to Cross-Motion/Reply to Opposition to Motion for Summary Judgment due by 12/21/2016; Reply to Opposition to Cross Motion due by 1/23/2017. (tg) (Entered: 06/08/2016)

MINUTE ORDER (paperless) GRANTING the parties' 13 Joint Motion for Extension of Summary Judgment Briefing Deadlines. Accordingly, the Court amends the SCHEDULING ORDER as follows: The defendant shall, by November 21, 2016, file any motion for summary judgment, along with supporting materials documenting the defendant's basis for any withholdings. The plaintiff shall, by December 21, 2016, file any opposition to the defendant's motion, as well as any cross-motion for summary judgment. The defendant shall, by January 23, 2017, file any reply in support of its motion for summary judgment, as well as any opposition to any cross-motion for summary judgment. The plaintiff shall, by February 21, 2017, file any reply in support of any cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on October 20, 2016. (lcbah2) (Entered: 10/20/2016)

2016-10-20

Set/Reset Deadlines: Summary Judgment motion and supporting materials documenting the defendant's basis for any withholdings due by 11/21/2016; Cross-Motion and Opposition to Motion for Summary Judgment due by 12/21/2016; Opposition to Cross-Motion and Reply to Opposition to Motion for Summary Judgment due by 1/23/2017; Reply to Opposition to Cross Motion due by 2/21/2017. (tg) (Entered: 10/20/2016)

MINUTE ORDER (paperless) GRANTING the defendant's 15 Consent Motion for Extension of Summary Judgment Briefing Deadlines. Accordingly, the Court amends the SCHEDULING ORDER as follows: The defendant shall, by November 23, 2016, file any motion for summary judgment, along with supporting materials documenting the defendant's basis for any withholdings. The plaintiff shall, by December 23, 2016, file any opposition to the defendant's motion, as well as any cross-motion for summary judgment. The defendant shall, by January 23, 2017, file any reply in support of its motion for summary judgment, as well as any opposition to any cross-motion for summary judgment. The plaintiff shall, by February 21, 2017, file any reply in support of any cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on November 18, 2016. (lcbah2) (Entered: 11/18/2016)

2016-11-18

Set/Reset Deadlines: Summary Judgment motion due by 11/23/2016; Cross-Motion/Opposition to Motion for Summary Judgment due by 12/23/2016; Opposition to Cross-Motion/Reply to Opposition to Motion for Summary Judgment due by 1/23/2017; Reply to Opposition to Cross Motion due by 2/21/2017. (tg) (Entered: 11/18/2016)

Consent MOTION for Extension of Time to File Combined Reply and Opposition and to Adjust Remaining Deadline in Briefing Schedule by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 01/18/2017)

2017-01-23

MINUTE ORDER (paperless) GRANTING the defendant's 19 Consent Motion for Extension of Time for Defendant to File Combined Reply and Opposition and to Adjust Remaining Deadlines in Briefing Schedule. Accordingly, the Court amends the SCHEDULING ORDER as follows: The defendant shall, by February 14, 2017, file any reply in support of its motion for summary judgment, as well as any opposition to any cross-motion for summary judgment. The plaintiff shall, by April 7, 2017, file any reply in support of any cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on January 23, 2017. (lcbah2) (Entered: 01/23/2017)

2017-01-23

Set/Reset Deadlines: Opposition to Cross Motion/Reply to Opposition to Motion for Summary Judgment due by 2/14/2017; Reply to Opposition to Cross Motion due by 4/7/2017. (tg) (Entered: 01/23/2017)

2017-02-09

20

MOTION for Extension of Time to File Combined Opposition to Cross Motion and Reply in Support of Motion for Summary Judgment by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 02/09/2017)

2017-02-09

21

RESPONSE re 20 MOTION for Extension of Time to File Combined Opposition to Cross Motion and Reply in Support of Motion for Summary Judgment filed by CENTER FOR BIOLOGICAL DIVERSITY, INC.. (Attachments: # 1 Attachment A)(Atwood, Amy) (Entered: 02/09/2017)

2017-02-10

MINUTE ORDER (paperless) GRANTING the defendant's 20 Motion for Extension of Time for Defendant to File Combined Reply and Opposition, over the plaintiff's objection, in light of the good cause shown by the defendant for the requested extension. Accordingly, the Court amends the SCHEDULING ORDER as follows: The defendant shall, by February 23, 2017, file any reply in support of its motion for summary judgment, as well as any opposition to any cross-motion for summary judgment. The plaintiff shall, by April 7, 2017, file any reply in support of any cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on February 10, 2017. (lcbah2) (Entered: 02/10/2017)

2017-02-10

Set/Reset Deadlines: Defendant's Opposition to Cross Motion/Reply to Opposition to Motion for Summary Judgment due by 2/23/2017; Plaintiff's Reply to Opposition to Cross Motion due by 4/7/2017. (tg) (Entered: 02/10/2017)

ORDER GRANTING in part and DENYING in part the defendant's 16 Motion for Summary Judgment, and GRANTING in part and DENYING in part the plaintiff's 17 Cross-Motion for Summary Judgment. Signed by Chief Judge Beryl A. Howell on September 28, 2017. (lcbah4) (Entered: 09/28/2017)

MOTION for Extension of Time to Comply with the Court's Order of September 28, 2017 and for Reconsideration in Part by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Proposed Order, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Supplemental Ingram Declaration)(Simon, Jeremy) (Entered: 10/18/2017)

2017-10-19

28

RESPONSE re 27 MOTION for Extension of Time to Comply with the Court's Order of September 28, 2017 and for Reconsideration in Part filed by CENTER FOR BIOLOGICAL DIVERSITY, INC.. (Attachments: # 1 Exhibit Exhibit 1 - Excerpts of Email Chain)(Townsend, Margaret) (Entered: 10/19/2017)

ORDER GRANTING in part and DENYING in part the government's 27 Motion for Extension of Time for Defendant to Comply with the Court's September 28, 2017, Order and for Reconsideration in Part and GRANTING in part and DENYING in part the plaintiff's 29 Motion to Amend Deadlines. See order for further details. Signed by Chief Judge Beryl A. Howell on October 23, 2017. (lcbah4) (Entered: 10/23/2017)

2017-10-23

Set/Reset Deadlines: Vaughn Index due by 12/4/2017; all nonexempt records subject to FOIA due by 3/1/2018. (tg) (Entered: 10/23/2017)

MINUTE ORDER (paperless) GRANTING the defendant's 31 Motion for Extension of Time for Defendant to Produce Vaughn Index . Accordingly, the defendant shall, by December 7, 2017, produce the Vaughn Index . Signed by Chief Judge Beryl A. Howell on December 4, 2017. (lcbah2) (Entered: 12/04/2017)

ORDER DENYING, upon consideration of the parties' 32 Joint Status Report, plaintiff's requests for two briefing schedules and a status hearing, and DIRECTING defendant to provide, by January 18, 2018, information regarding the December 4, 2017 released documents. See Order for further details. Signed by Chief Judge Beryl A. Howell on January 5, 2018. (lcbah2) (Entered: 01/05/2018)

2018-01-08

Set/Reset Deadlines: Defendant's response to Order of the Court due by 1/18/2018. (tg) (Entered: 01/08/2018)

MINUTE ORDER (paperless) ISSUING, upon consideration of the parties' 35 Joint Status Report, the following SCHEDULING ORDER to control the timing of proceedings in this matter: (1) the defendant shall file, by May 17, 2018, any motion for summary judgment; (2) the plaintiff shall file, by June 18, 2018, any consolidated opposition to the defendant's motion for summary judgment and cross-motion for summary judgment; (3) the defendant shall file, by July 17, 2018, any consolidated opposition to the plaintiff's cross-motion for summary judgment and reply in support of its motion for summary judgment; and (4) the plaintiff shall file, by August 7, 2018, any reply in support of its cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on March 15, 2018. (lcbah2) (Entered: 03/15/2018)

2018-03-16

Set/Reset Deadlines: Summary Judgment motion due by 5/17/2018; Cross-Motion and Opposition to Motion for Summary Judgment due by 6/18/2018; Opposition to Cross-Motion and Reply to Opposition to Motion for Summary Judgment due by 7/17/2018; Reply to Opposition to Cross Motion due by 8/7/2018. (tg) (Entered: 03/16/2018)

2018-05-11

36

Consent MOTION for Extension of Time to File Motion for Summary Judgment and for Adjustment of Related Deadlines by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 05/11/2018)

2018-05-11

MINUTE ORDER (paperless) GRANTING the defendant's 36 Consent Motion for Extension of Time for Defendant to File Its Motion for Summary Judgment and for Adjustment of Related Deadlines, and ISSUING the following SCHEDULING ORDER to control further proceedings in this case: (1) the defendant shall file, by June 6, 2018, any motion for summary judgment; (2) the plaintiff shall file, by by July 16, 2018, any consolidated opposition to the defendant's motion for summary judgment and cross-motion for summary judgment; (3) the defendant shall file, by August 16, 2018, any consolidated opposition to the plaintiff's cross-motion for summary judgment and reply in support of its motion for summary judgment; and (4) the plaintiff shall file, by September 17, 2018, any reply in support of its cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on May 11, 2018. (lcbah2) (Entered: 05/11/2018)

2018-05-14

Set/Reset Deadlines: Summary Judgment motion due by 6/6/2018; Cross-Motion and Opposition to Motion for Summary Judgment due by 7/16/2018; Opposition to Cross-Motion and Reply to Opposition to Motion for Summary Judgment due by 8/16/2018; Reply to Opposition to Cross Motion due by 9/17/2018. (tg) (Entered: 05/14/2018)

MOTION for Extension of Time to File Combined Reply in Support of Motion for Summary Judgment and Opposition to Plaintiff's Cross Motion by U.S. ENVIRONMENTAL PROTECTION AGENCY (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 08/09/2018)

2018-08-10

MINUTE ORDER (paperless) GRANTING the defendant's 40 Motion for Extension of Time for Defendant to File its Combined Reply and Opposition to Cross-Motion, which the plaintiff does not oppose. Accordingly, the Court amends the SCHEDULING ORDER as follows: (1) the defendant shall file, by September 5, 2018, any consolidated opposition to the plaintiff's cross-motion for summary judgment and reply in support of its motion for summary judgment; and (2) the plaintiff shall file, by October 4, 2018, any reply in support of its cross-motion for summary judgment. Signed by Chief Judge Beryl A. Howell on August 10, 2018. (lcbah2) (Entered: 08/10/2018)

2018-08-13

Set/Reset Deadlines: Defendant's consolidated opposition to plaintiff's cross-motion for summary judgment and reply in support of its motion for summary judgment due by 9/5/2018; plaintiff's reply to opposition to cross-motion due by 10/4/2018. (tg) (Entered: 08/13/2018)

MINUTE ORDER (paperless) DIRECTING, upon consideration of the defendant EPA's 37 Motion for Summary Judgment; the plaintiff's 38 Cross-Motion for Summary Judgment; and, in particular, the plaintiff's request "that the Court conduct in camera review of the records," see 38 Mem. Supp. Cross-Mot. Summ. J. ("Pl.'s Mem.") at 15 n.4, that the defendant EPA submit ex parte , by December 12, 2018, at 12:00 PM, unredacted copies of the 79 records remaining in dispute, as identified in the Pl.'s Mem. at 8 n.3, which the defendant is withholding under the deliberative process privilege encompassed by Exception 5 of the Freedom of Information Act. Signed by Chief Judge Beryl A. Howell on December 10, 2018. (lcbah2) (Entered: 12/10/2018)